JOHN L. SMITH: Stupid doggedness in Gage case endangers pursuit of larger quarry - News

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Apr. 30, 2008
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JOHN L. SMITH: Stupid doggedness in Gage case endangers pursuit of larger quarry

JOHN L. SMITH
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Now look at the fine mess they've gotten themselves into.

The government managed to look like checkers players at a chess match this week in its foundering case against personal injury attorney Noel Gage. Instead of stepping back after limping away with a hung jury in its first trial, the U.S. attorney's office continued to pursue Gage in a mission that provides a distraction from the larger, more important targets in the FBI's doctor-lawyer medical malpractice investigation.

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On Monday, Senior U.S. District Judge Justin Quackenbush ordered the government to provide limited immunity to Dr. Mark Kabins to compel his testimony in a second trial against Gage, who is accused of conspiring with medical consultant Howard Awand and others to exploit clients, inflate medical costs and protect selected physicians from malpractice lawsuits.

A failure to grant Kabins immunity could result in the charges being dismissed against Gage, and on Tuesday the government refused to immunize the doctor.

Kabins was one of the treating surgeons in a malpractice case filed by Melodie Simon, who was represented by Gage. The government contends Gage, Kabins, surgeon John Thalgott and Awand conspired to exploit Simon by diverting the lawsuit away from the doctors in exchange for future favors. Simon won $2.3 million for injuries that left her paralyzed and received $1.3 million after attorney fees and costs. At trial, the government outlined another case in which Gage won an $18 million settlement. A jury didn't buy it.

In a motion to the court, Gage's attorneys argued that the government's key witnesses, surgeons Thalgott and Benjamin Venger, were granted immunity in exchange for their testimony. Kabins, who shared an office with Thalgott and was integrally involved in the Simon case, also deserved that opportunity even though he was expected to contradict Thalgott's version of events.

Quackenbush agreed.

Unless there's a startling new development, the government's case against Gage appears sunk. That should surprise no one.

The signs of trouble were there from the start. Quackenbush was skeptical of the case against Gage as early as the pretrial stage. Instead of paring the 19 charges against Gage, the government soldiered on and watched the judge do the cutting for them. Some people would consider that a wake-up call.

After seeing 13 charges dismissed and watching its star witnesses look arrogant and sleazy, the damage was done. Jurors split 8-to-4 to convict. A mistrial was declared.

A lot of prosecutors would have wisely seen that split as a sign to pick up and move on to more important business or arrange for a settlement that allowed everyone to save face, but that didn't happen.

What was the prosecution's response to those very real problems?

To encourage its own middleman, attorney George Kelesis, who helped arrange for the testimony of Thalgott and Venger, to approach pet reporter pals and pound away at the Review-Journal for printing the obvious. It was real amateur-hour stuff.

At the risk of playing amateur psychiatrist, this case reeks of big egos on both sides of the aisle. Gage, whose close relationship with reputed case-fixer Awand is no secret, ought to have been amenable to settlement. Hung jury or not, he'll have trouble shaking the stench of suspicion he sold out a defenseless client.

The prosecution, meanwhile, shouldn't have focused on the gnarled veteran litigator as its test case. Is Gage really an integral part of a larger conspiracy?

Going forward, the government will have to work harder to prepare Thalgott and Venger. While accusing Gage of criminal conspiracies, Venger admitted perjury and money laundering. He also received immunity and agreed to forfeit money to the government.

While damning Gage, Thalgott admitted he participated in meetings outlined in the criminal conspiracy. Although the jury didn't hear it, Thalgott agreed to pay Simon an additional $1.5 million.

In an ill-advised April 3 letter to his "dear and valued patients," Thalgott attempted to revise the facts and place the blame on the mean old newspaper. He decided to leave out of the letter his immunity deal and the $1.5 million check he agreed to hand Simon. Add one more amateur-hour move to the growing list.

By failing to gauge their case against Gage, prosecutors now risk harming their larger investigation and the case against the real linchpin in this affair, Howard Awand.

It's a fine mess, indeed.

John L. Smith's column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call (702) 383-0295.

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Please enter your name Name: Please enter your email Email: Please enter a comment COMMENTS : (word count limit is 300) You have reached the maximum number of words allowed Current Word Count: Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background. Genevieve Fosa wrote on December 04, 2008 11:43 AM: I just have one question. At the time this article was written, Mr. Awand had not gone to trial. Why was your reporter shouting so shrilly that Awand was guilty? I thought our jurisprudence system was based on one being innocent until having been proven to be guilty in a court of law. Joseph Lochert wrote on May 01, 2008 05:11 PM: Sad, My point is this: In your earlier email, you said: "Quackenbush was an attorney long before he was a judge. They look after their own." I read that as impugning his integrity. I simply wanted to point out that under that reasoning, Quackenbush would look after the prosecutors, because he once was a prosecutor. nuevp americano wrote on April 30, 2008 08:58 PM: George Knapp would be surprised as well as his insurance friends. Sad wrote on April 30, 2008 06:30 PM: Joe, a good many of our state judges came from our DA's office and AG's office. Your point would be? Nuevo Americano wrote on April 30, 2008 04:13 PM: Surprise no one? George Knapp has already convicted Gage. It sure will surprise dear old George and his insurance friends Joseph Lochert wrote on April 30, 2008 09:25 AM: Sad, Before questioning the integrity of Quackenbush, you should know that he spent a couple of years as a prosecutor in Spokane County, Washington. (I got this information from the federal judicial center website, which contains biographies of the federal judges. It can be found at http://www.fjc.gov/history/home.nsf. You can do a search for Quackenbush under "Judges of the United States Courts.") Just The Facts Please wrote on April 30, 2008 08:49 AM: Mr. Smith - were you absent when fair and balanced was taught at J-school? Your on-going vicious attacks must be great for selling papers but is the public really getting the facts? The fact is that Dr. Thalgott voluntarily approached the federal government offering to be a witness in this case. He is not on trial here, yet you persist in "trying" him in the paper. And, "pet reporters" - oh my, Mr. Smith - to cast asperions upon your peers. These are not any of the tenets of true journalists. You should stick to writing books and get out of the "news" business. curious wrote on April 30, 2008 08:26 AM: Gee Whiz,Sad, it really is a shame that the federal judge followed the dictates of the constitution and actually made the government lawyers give Gage a fair trial. I thought that was the whole point of our war, "spreading democracy." So, your argument is that the "Judge" ought to eliminate Gage's right to a fair trial, let the government put on perjured testimony, and put the 70 year old Gage in jail as a "message." What is the "message," that the Taliban is alive and well at the US Attorney's office? What part of America are you from? You don't think people deserve a fair trial? Just take them out and lynch them? Do you even know what the facts are, or do you have some hidden agenda? Did your ex-wife kick your butt at court and you "hate" judges and lawyers? Or what is your story? Greedy Pigs!!!! wrote on April 30, 2008 08:19 AM: Stupid is as stupid does. Sad wrote on April 30, 2008 07:56 AM: The sad part is Quackenbush has done all he can to blow the case. Quackenbush was an attorney long before he was a judge. They look after their own. Quackenbush really whittled this case down. The public deserves better. The jury instructions were confusing. Don't worry Noel "The Quack" has your back. Read All Comments